Washington Nat. Ins. Co. v. Cook, 1365.

• Decision Date: 15 February 1935
• Docket Number: No. 1365.,1365.
• Citation: 80 S.W.2d 327
• Parties: WASHINGTON NAT. INS. CO. v. COOK.
• Court: Texas Court of Appeals

Page 327

80 S.W.2d 327

WASHINGTON NAT. INS. CO. v. COOK.

No. 1365.

Court of Civil Appeals of Texas. Eastland.

February 15, 1935.

Rehearing Denied March 15, 1935.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Action by Joe E. Cook against the Washington National Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Turner, Seaberry & Springer, of Eastland, for appellant.

R. N. Grisham, of Eastland, for appellee.

HICKMAN, Chief Justice.

Upon the findings of a jury in answer to special issues, judgment was awarded to appellee against appellant for $3,000, on an accident insurance policy. Since we have determined that one question, of the many presented, is controlling, only such statement of the case will be made as throws light upon that question. One of the defenses pleaded by the appellant was as follows: "And for further answer herein, defendants would represent and show unto the court that on or about April 15, 1931, defendants were advised by Carl Low, plant superintendent, that plaintiff was injured on March 30, 1931, by burns received by a pipe outside the engine rooms blowing out and igniting gas in pipe from blow torch. That defendants immediately got in touch with plaintiff, who filed claim for the injuries received. That plaintiff claimed damages for such injuries in the sum of Fifty ($50.00) Dollars, and represented to defendants that he had been disabled for a period of fifteen days; that he would return to work on said 15th day of April, 1931. That defendants paid the claim of plaintiff in full for such injuries, and received a full and complete release from plaintiff for such injuries. That by virtue of such facts said claim for damages has been settled in full and defendants completely released, and plaintiff is not entitled to recover herein."

If that defense is to be sustained, all other issues become immaterial. The only attack made upon the release executed by appellee was a want of consideration for its execution. The issues submitted to the jury with reference thereto, and the answers returned to these issues, were as follows:

"Special Issue No. 9: Do you find from a preponderance of the evidence that the sum of $50.00 which was paid to plaintiff by the insurance company on April 15, 1931, was paid solely on account of disability and loss of time suffered by him prior to said payment? Answer Yes or No. Answer: Yes.

                              "[Sgd.] D. G. Hunt, Foreman
                

"If you have answered the preceding question in the negative, you need not answer the following special issue, but if you have answered same in the affirmative, then answer:

"Special Issue No. 10: Do you find from a preponderance of the evidence that there was no consideration for the release signed by plaintiff, insofar as said instrument purported to release the insurance company from liability on account of loss of time and disability that might be suffered by plaintiff in the future? Answer Yes or No. Answer: Yes.

                            "[Sgd.] D. G. Hunt, Foreman."
                

Appellee's injuries were received on March 30, 1931, from a gas explosion. In addition to external burns, his mouth and throat were seared, and the evidence supports the jury's finding that tuberculosis resulted therefrom. After the accident, he spent a few days in a hospital in Gorman and then returned to his home in Desdemona, from which he made frequent visits to his doctor at the hospital. T. J. Duncan was the local agent of appellant, through whom appellee procured his policy of insurance. Shortly after the accident, the plant superintendent of the company by which appellee was employed advised Duncan of appellee's injury. On or about April 12th, Duncan visited appellee in his home, the visit being described in appellee's brief as "a friendly call and for the purpose of finding out how plaintiff was getting along; nothing being said by either of them about pay." Three days later Duncan again visited appellee, bringing with him a blank preliminary notice of accident to be filled out by the insured. This blank form was one evidently adopted by the appellant for use by claimants as a preliminary notice. On the reverse side of this instrument was a form for the surgeon's preliminary report. This report had been executed by Dr. Ed Blackwell, appellee's attending physician on the day before. One of the interrogatories answered by the surgeon was as follows: "How soon, in your opinion, from the date of injury, will claimant be able to perform some of his or her duties?" To which he answered, "About two or three weeks." The preliminary notice of accident executed on that day by the appellee recited in its caption that "* * * for the purpose of applying for such benefits as I may be entitled to, make answer to the following questions. * * *" One of the questions answered by the appellee in this report was as follows: "If paid at once without requiring further proofs, what number of days' indemnity are you willing to accept in full payment of claim for this injury?" To which the claimant answered, "15 days." This preliminary report was sent to the appellant's head office in Chicago. On the same day that appellee executed this preliminary report, Duncan drew a draft upon appellant as follows:

"Dept. ____ Dist. ____ File No. 506426. April 15th 1931 Washington Fidelity National Insurance Company Pay to the order of Joe E. Cook $50.00 Fifty and no/100 Dollars in settlement of claims as per receipt on back to Washington Fidelity National Insurance Company, 1607 Howard Street, Chicago, Illinois. (Signed) Thos. J. Duncan."

Appellee indorsed his name on the back of that draft, under the following release: "Received of the Washington Fidelity National Insurance Company $50.00 in full payment, satisfaction, discharge and release of any and all claims that I myself, my heirs, executors, administrators, assigns or beneficiaries now have or may hereafter have against said Company under Policy No. PC 5237 arising on account of injuries received or illness contracted on or about the 30th day of March 1931, and any loss that may hereafter result from said injuries or illness. (signed) Joe E. Cook."

This draft on its face contained, among others, the following indorsements: "Approved for payment Apr. 22, 1931 by U. S. Nat'l L. & C. Co.," and, "Paid Chk No. 27995 April 22 1931 Washington Fidelity National Insurance Company."

There was no discussion between appellee and Duncan at or prior to the time this draft was drawn as to the liability of appellant. The testimony about this matter given by the appellee himself is as follows:

"Q. At the time you received this $50.00 draft from Duncan, state whether or not in the conversation just prior to the time he gave you the draft, if anything was said about whether or not the company was liable for money on account of your injury? A. No, nothing said about it.

"Q. State whether or not Duncan said anything about the company being liable? A. No, he did not.

"Q. Was there any discussion between you on the question of liability? A. No, no occasion. I thought I was going to get well.

"Q. State whether or not anything was said with reference to the amount you would receive on account of your injury at that time? A. Yes, sir.

"Q. What was said? A. I told you awhile ago. I had three days coming and he said for me to take the $50.00 and just give him the three days to keep him from coming back and I said all right, it didn't amount to anything.

"Q. Anything more said? A. That was all.

"Q. Anything more said about the amount due you? A. That was all."

Appellee returned to his employment on April 18th, and continued therein until June 2d, thereafter, but, according to the findings of the jury, which are supported by the evidence, he was really unable to perform labor during that time, and has been continuously unable to do so since that time. His physician, Dr. Blackwell, frankly admits that, in the light of the facts as they have now developed, he was mistaken in advising his patient to resume his employment.

By the court's charge the burden of proving that there was no consideration for the release was properly placed upon appellee. We have concluded, not only that he failed to discharge that burden, but that, as a matter of law, this release was based upon a valid consideration. Appellee's claim was single. It did not consist of two separate demands so as to make applicable the rule that the payment of one would not afford a consideration for the release of the other. The fact that there was no dispute between the parties is not controlling. There was no occasion for any dispute. No one knew the extent, or probable duration, of appellee's injuries. He and his physician were in a better position than was appellant's agent to make an estimate thereof. Dr. Blackwell was not appellant's representative, but was the physician of appellee's own choosing. The parties dealt at arms' length concerning a claim of unknown and unknowable amount. Appellee stated in his preliminary report, which was sent to appellant's home office, that, if paid at once without requiring further proofs, he was willing to accept fifteen days indemnity ($50) in full payment of his claim. A draft for $50 was drawn on appellant, on the reverse side of which was a release duly executed by appellee exonerating it from any further liability on the claim. That release could be delivered to appellant and thereby become effective only by the acceptance and payment by it of the draft. One week later it accepted and paid same and appellee received the full amount which he offered to accept for his claim. There would not have been a more definite consideration shown had the facts established a dispute as to liability. The question was not discussed and the amount collectible, if any, was unknowable at the time. That was sufficient. Great Southern Life Ins. Co. v. Heavin (Tex. Com. App.) 39 S.W.(2d) 851; Inter-Ocean Casualty...